News | December 22, 2014

New federal coal ash protections contain “glaring flaws”

SELC Senior Attorney Frank Holleman has responded to the December 19, 2014 announcement from the EPA regarding new federal coal ash protections:

As we’ve seen over the past six years, irresponsible storage of coal ash by big utilities has caused unprecedented disasters and threatened the health and safety of Americans around the country. While there are some new tools for addressing our nation’s coal ash problem in these new federal protections, there are glaring flaws in the EPA’s approach.

Most problematically, the absence of federal oversight and enforcement means that any meaningful protective action will continue to fall to our states and local communities. In recent years our states have failed to adequately address the widespread threat of coal ash, and we are concerned that state decision-makers will not do their part in protecting waterways and the health of citizens. We have seen how this issue plays out in North Carolina, where the state has not done enough to address Duke Energy’s irresponsible handling of coal ash, despite the disastrous Dan River spill earlier this year.

Another major omission is the rule’s failure to clearly require a cleanup of existing and outdated coal ash lagoons. EPA has created a long and uncertain path for addressing these sites when clearly we need to take action immediately.  

In the Southeast, almost every major river system has at least one set of these lagoons on its banks – threatening communities with catastrophic failure, polluting rivers, lakes, and groundwater, and contaminating drinking water supplies. The Dan River spill showed dramatically how dangerous old lagoons are. Our litigation and the work of local conservation and riverkeeper groups have forced utilities in the Carolinas to clean up lagoons, and we will continue to enforce existing clean water laws to protect the Southeast’s rivers and communities by requiring clean ups of these aging coal ash sites, but this is a problem EPA’s rule should have been addressed more directly.

Over the past six years, the Southern Environmental Law Center has taken the lead in both statehouses and courthouses to require Southern utilities to clean up their coal ash. While our work has resulted in some successes, stronger federal and state oversight is crucial to ensure utilities safely and effectively deal with their coal ash disposal.

In order to protect communities from coal ash pollution, we need action that requires accountability from states and from utilities.


SELC is partnering with conservation groups throughout the region to protect communities and the environment from the dangers of coal ash pollution. Following lawsuits by the Southern Environmental Law Center, utilities in South Carolina are removing coal ash from unlined pits near rivers to safer, dry, lined storage facilities away from rivers and lakes.

In addition, SELC is representing a number of groups in ten different state and federal lawsuits to require clean up at all 14 of Duke Energy’s leaking coal ash sites throughout North Carolina and is representing local conservation groups with respect to a Duke facility in South Carolina. In response to our litigation and the work of local conservation and riverkeeper groups, Duke Energy has agreed to clean up 4 of its 14 coal ash storage sites in North Carolina. SELC is also taking legal action at two Dominion power plants in Virginia, Possum Point and Chesapeake Energy Center, as well as TVA’s Gallatin facility near Nashville, Tennessee.

Selected press coverage of the announcement:


From the News & Observer (Raleigh, NC):

That decision leaves it to utilities to comply with the new federal rule, without federal enforcement. States can adopt similar standards if they choose, but enforcement is otherwise left to citizens by filing lawsuits.

From Reuters:

Less clear, environmentalists say, is whether the agency will require the dismantling of existing holding ponds, and the transfer of the waste to dry-storage landfills or for re-use in products like concrete and drywall.

“From our perspective, that is the key,” said Frank Holleman, attorney with the Southern Environmental Law Center.

From the Los Angeles Times:

The regulations disappointed environmental groups because coal ash is not treated like hazardous waste, as they had demanded. Instead the regulations tend to favor electric utilities.

From the New Republic:

“It’s stunning that 21st century America would store millions of tons of industrial waste in such a primitive and outmoded way,” Senior Attorney Frank Holleman of the Southern Environmental Law Center said. “This was a lost opportunity on the part of the EPA and national government to protect rivers and lakes.” 

From the News & Record (Greensboro, NC):

Southern Environmental Law Center attorney Frank Holleman criticized the new rule for being too convoluted, lenient and bureaucratic.

“It doesn’t say, ‘Don’t put any more coal ash in any more of these crummy lagoons,’ which should be obvious,” said Holleman, whose Chapel Hill-based nonprofit organization represents conservation groups in 10 lawsuits seeking to force Duke Energy to clean up its ash ponds more quickly than currently planned.

From the New York Times:

Advocates for stronger restrictions on coal ash expressed disappointment in the rule, especially that coal-fired power plants would be allowed to continue dumping the ash into existing ponds that they are left to largely police themselves.